Pamela Boyer appeals the summary judgment dismissal
of her store-owner negligence claim against Circle K Corporation.
Boyer raises three theories of liability by asserting that a
Circle K employee created the dangerous condition which caused her to
fall, that the employee had constructive notice of the dangerous
condition, and that the store's self-service nature results in
liability without notice of the danger. We find, that when viewed
in the light most favorable to the nonmoving party, genuine
issues of fact exist concerning whether a Circle K
employee created the condition that caused Boyer to trip
and whether the employee had constructive notice of a dangerous
condition.

We present the facts in the light most favorable to Boyer. On
July 4, 1993, Pamela Boyer tripped and fell after purchasing
a bottle of wine at the Auburn, Circle K convenience store. Boyer
fell after feeling something catch in her sandal. Kay Nishiyori,
one of two Circle K clerks on duty, first became aware of Boyer's
fall when she heard a bottle break. After asking Boyer if she was
okay, Nishiyori found a bracket/hanger on the floor near Boyer,
picked it up, and took it to the back room. Due to store remodeling,
the hanger has not been located.

Boyer states that Nishiyori admitted that she had been putting
up shelves, that she must have forgotten to pick up the bracket,
and that it was her fault that Boyer fell. Nishiyori states that
at least one hour before Boyer's accident, she had observed a
family with six children come into the store. The children had
the run of the store and removed candy from the candy aisle and
left it elsewhere in the store. Nishiyori inspected the store
before the start of her shift, but because business was steady
on the Fourth of July, no inspection occurred after the children
left. Upon finding the hanger on the floor, Nishiyori assumed
that the children had pulled the hanger out of the wall and left
it on the floor.

Neither Boyer nor Nishiyori saw the hanger prior to Boyer's
fall. Nishiyori has never seen or heard of any other falls in the
Auburn Circle K or in other area stores.

Standard of Review:

When reviewing an order of summary judgment, this court engages
in the same inquiry as the lower court.
RAP 9.12;
Marincovich v. Tarabochia,
114 Wash. 2d 271, 274, 787 P.2d 562 (1990).
Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law."
CR. 56(c);
Carlyle v. Safeway Stores, Inc.,
78 Wash. App. 272, 275, 896 P.2d 750,
review denied 128 Wash. 2d 1004, 907 P.2d 297 (1995).
A defendant may meet her initial burden of showing the
absence of genuine factual issues by challenging the
sufficiency of the evidence supporting an essential element
of the plaintiff's claim.
Carlyle,
78 Wash. App. at 275
citing
Young v. Key Pharmaceuticals, Inc.,
112 Wash. 2d 216, 225, 770 P.2d 182 (1989).

A material fact is one on which the outcome of litigation depends.
Clements v. Travelers Indem. Co.,
121 Wash. 2d 243, 249, 850 P.2d 1298 (1993).
The court must consider the facts submitted and all reasonable
inferences from those facts in the light most favorable to the
nonmoving party.
Clements,
121 Wash. 2d at 249.
The motion should be granted only if, from all the evidence,
reasonable persons could reach but one Conclusion.
Clements,
121 Wash. 2d at 249.

To prevail on her negligence claim, Boyer has the burden of
establishing that: (1) Circle K owed a duty of care to Boyer;
(2) Circle K breached that duty of care; (3) the breach resulted
in injury; and (4) the breach was the proximate cause of the
injury.
SeeTincani v. Inland Empire Zoological Soc'y,
124 Wash. 2d 121, 127-28, 875 P.2d 621 (1994).
In this case, Boyer, a business invitee, claims that Circle
K was negligent in the maintenance and operation of its
self-service convenience store.

Circle K claims that summary judgment was proper because
Boyer failed to establish that a dangerous condition
caused her fall and that Circle K breached its duty to
Boyer. We address each in turn.

Causation:

Contrary to Circle K's assertion, Boyer has produced evidence
of causation. Division Two of this court has stated that the
plaintiff must produce first hand knowledge that an unsafe
condition existed at the time of her fall.
SeeWatters v. Aberdeen Recreation, Inc.,
75 Wash. App. 710, 714, 879 P.2d 337 (1994).
In
Watters,
summary judgment was affirmed because Watters did not
personally observe an unsafe condition at the time of her
fall and three witnesses were prepared to testify that based upon
personal knowledge, no unsafe condition existed.
Watters,
75 Wash. App. at 714.
This case is distinguishable from
Watters
because both Boyer and Nishiyori have personal knowledge that
a hanger/bracket was found on the floor near where Boyer fell.
Thus, unlike
Watters,
if a jury believes Boyer's statement that she felt something
catch her foot, it can infer that the recovered object caused
Boyer's fall.

Breach of Duty:

We next turn to Boyer's alternative theories of breach of duty.
First, we find Boyer's deposition and affidavit sufficient to
create a genuine issue of material fact that an employee of Circle
K created the dangerous condition. Through these documents, Boyer
states that Nishiyori admitted that she was putting up shelves,
that she must have forgotten the bracket, that she should not
have left the bracket on the floor, that she should have picked
it up, that the bracket must have been the cause of Boyer's
fall, and that it was her fault that Boyer fell.

Boyer, in accord with CR 56(c) and (e), supported her claims with
affidavits and depositions of specific facts based on personal
knowledge. Whether a jury will choose to believe Boyer or Nishiyori
is not our concern. A court is not to weigh evidence when ruling
on a motion for summary judgment.
No Ka Oi Corp. v. National 60 Minute Tune, Inc.,
71 Wash. App. 844, 854 n.11, 863 P.2d 79 (1993),
review denied 124 Wash. 2d 1002, 877 P.2d 1287 (1994).

Nevertheless, a narrow exception exists for deciding factual questions
on summary judgment where reasonable minds could reach but one
Conclusion from the evidence presented.
Van Dinter v. City of Kennewick,
121 Wash. 2d 38, 47, 846 P.2d 522 (1993).
Circle K contends that this is such a case because Boyer's claims
that Nishiyori admitted to working on shelving and leaving a
bracket on the floor are factually impossible. To support this
argument, Circle K offers Nishiyori's statements that she was
not working on shelving and that all shelf brackets were welded
onto shelves creating integrated units. Apart from the questionable
significance of characterizing the object as a hanger versus
a bracket, in order to find in favor of Circle K, we would need
to consider Nishiyori's statements more credible than Boyer's.
As previously stated, credibility is an issue for the trier of
fact. Moreover, Nishiyori, in her deposition, uses both terms
to describe the recovered object. Therefore, we find that given
the evidence, reasonable minds could reach more than one Conclusion.

Next, we turn to the question of whether a genuine issue exists
concerning Circle K's constructive knowledge of the presence
of a dangerous condition. In order for Boyer to show constructive
notice, she must produce evidence that a reasonably prudent shopkeeper
with adequate housekeeping procedures would have found the hanger
or that there was an unreasonable risk that a hanger would be
on the floor.
SeeColeman v. Ernst Home Center, Inc.,
70 Wash. App. 213, 224, 853 P.2d 473 (1993).
In
Coleman,
the plaintiff was injured when she tripped on a hole in
an entrance way tire-mat carpet.
Coleman,
70 Wash. App. at 215.
The court stated:

The adequacy of housekeeping procedures is a jury question.

However, there must first be some evidence, in this case, from
which a rational trier of fact could infer that to inspect only
once a day, just before 9 a.m., was not adequate because the
known frequency of loosened tire strips required greater vigilance.

Coleman,
70 Wash. App. at 223.

In this case, Boyer has failed to present evidence that Nishiyori's
safety inspection prior to coming on duty at 2 p.m. is generally
inadequate given Nishiyori's statement that she has never seen
or heard of other falls in the Auburn Circle K or in other nearby
stores. However, the fact that Nishiyori observed children removing
candy from the candy aisle at least one hour before Boyer's
fall and her quick assumption that they must have removed the hanger
distinguishes this case from
Coleman.
These facts create a jury question regarding whether a
reasonably prudent shopkeeper would have inspected the
premises shortly after the children left the store.

Finally, we address whether the
Pimentel
exception applies in this case. The
Pimentel
exception eliminates the notice prong in negligence
claims against self-service businesses that operate in a manner
creating a continuous and foreseeably dangerous condition.
SeePimentel v. Roundup Co.,
100 Wash. 2d 39, 666 P.2d 888 (1983).
Boyer oversimplifies the law by alleging that self-service grocery
stores and self-service cafeterias are the type where the requirement
for notice is eliminated because the existence of unsafe conditions
is reasonably foreseeable. The self-service exception to notice
has been continually narrowed to the point where "'self-service'
is not the key to the exception."
Iwai v. State,
129 Wash. 2d 84, 100, 915 P.2d 1089 (1996).
Rather, the focus is on whether the nature of the business and
mode of operation create a reasonably foreseeable dangerous condition.
Iwai,
129 Wash. 2d at 100.

As applied to self-service businesses, the exemption from the
notice requirement is restricted in the following three ways.
First, a fact-specific inquiry into the particular self-service
operation must show that the existence of unsafe conditions is
reasonably foreseeable.
Pimentel,
100 Wash. 2d at 49.
Second, the plaintiff's injury must occur in the self-service
area of the store.
Coleman,
70 Wash. App. at 219.
Third, the exception applies only to the section of
the self-service area where the unsafe condition that caused
the injury is "'continuous or foreseeably inherent in the
nature of the business or mode of operation.'"
Ingersoll v. DeBartolo, Inc.,
123 Wash. 2d 649, 653, 869 P.2d 1014 (1994);
Wiltse v. Albertson's, Inc.,
116 Wash. 2d 452, 461, 805 P.2d 793 (1991).

Thus, in order to prevail on this claim, Boyer must show (1) that
the routine operation of the Circle K store results in unsafe
conditions, (2) that she was injured in a self-service
area of the store, and (3) that it is inherent
in the operation of the Circle K that a food hanger from some
other aisle will end up on the floor in front of the cash register
and trip someone.

Boyer failed to produce any evidence from which the trier of fact
could reasonably infer that the nature and operation of the Circle
K presented a reasonably foreseeable risk that food hangers would
be on the floor next to the checkout counter where there were
no displays with hangers. Nishiyori stated only that it was foreseeable
that children would come into the store and remove and relocate
candy. There is no evidence on the ease of removing hangers or
the frequency that food hangers are removed and found on the
floor. Thus, we find as a matter of law that there is insufficient
evidence to find that the self-service exception to actual or
constructive notice applies in this case.

Because genuine factual issues exist concerning whether a Circle
K employee either created or had constructive notice of the dangerous
condition, we reverse the lower court's grant of summary judgment
and remand for proceedings consistent with this opinion.